New South Wales Court of Criminal Appeal CITATION : Regina v Perese [2001] NSWCCA 467 revised - 14/12/2001 FILE NUMBER(S) : CCA 60085/01 HEARING DATE(S) : Friday, 2 November 2001 JUDGMENT DATE : 13 December 2001 PARTIES : The Crown Jonathon Perese JUDGMENT OF : Beazley JA at 1; Hulme J at 2; McClellan J at 3 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/21/1070 LOWER COURT JUDICIAL Black DCJ OFFICER : COUNSEL : P Berman SC (Crown) T S Corish (Appl) SOLICITORS : Director of Public Prosecutions D J Humphreys LEGISLATION CITED : Crimes Act 1900 s 97(1) Smith v R (2001) 181 ALR 354 CASES CITED: King v R (1986) 161 CLR 423 DPP (Nauru) v Fowler (1984) 154 CLR 627 R v Gordon (1994) 71 A Crim R 459 DECISION : See para 15 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL 60085/01 BEAZLEY JA HULME J McCLELLAN J THURSDAY, 13 DECEMBER 2001 REGINA v Jonathon PERESE Judgment 1 BEAZLEY JA: I agree with McClellan J. 2 HULME J: I agree with McClellan J. 3 McCLELLAN J: The appellant was indicted on a count of armed robbery. The offence is one for which s 97(1) of the Crimes Act 1900 provides a maximum penalty of twenty years imprisonment. He was convicted and appeals from that conviction. The appellant was sentenced by Black DCJ to a term of three years imprisonment with a non-parole period of eight months. An appeal is also brought with respect to the severity of that sentence. 4 The Crown alleged that on 19 June 1998, at about 4.30 pm, the appellant and two other males entered the Blacktown branch of the ANZ bank. The appellant apparently went to the counter; and he and another of the males jumped over it. The appellant accosted a bank officer with a knife and demanded money from her. The appellant took $2,890 from the a cash drawer. The appellant later fled from the staff area through a door. While leaving the scene it was the Crown case that the bank security surveillance cameras took a series of photographs which depicted the appellant. 5 The appellant was arrested on 26 February 1999, after the robbery occurred. During an ERISP on that day at Newtown police station, the appellant denied any involvement in the offence. 6 The Crown called a number of witnesses who provided various descriptions of the assailants but there was no evidence of identification of the appellant by any witness to the incident. 7 The crucial witness in the Crown case was Detective Dunmead. His evidence went to the identity of the person depicted in the security camera photographs. The Crown stated to Black DCJ at the commencement of the trial: "The Crown case ultimately depends on the identification being made of (sic) the police officer and my friend is going to argue that your Honour should by exercising your discretion, I think under s 137 you should omit that evidence because of its prejudicial value and I've got a case that says it's admissible… .: 8 A voir dire was permitted by the trial judge who admitted the evidence, stating: "Accordingly, in the present case I am satisfied that the evidence of that police officer in the present case is highly probative. I am not satisfied that its probative value is outweighed by the danger of unfair prejudice to the defendant, particularly in view of the concession made by the Crown that in calling the officer in chief they would not elicit evidence from him as to the basis of his identification of the accused which incorporated what might be described as his 'professional encounters' with the accused, namely in an arrest and interview and court situation. It will be possible, in my view, for the evidence not to place the defence in an impossible corner, although how that is done, of course, is a matter for the individual advocates concerned." 9 In evidence in chief during the trial, Det Dunmead stated that at 11.30 am on Friday, 29 January 1999 at Parramatta police station, he was shown two black and white photographs of a male person running inside the ANZ bank. One was a close-up. Det Dunmead stated (reading from his statement): "I looked at the photo and examined the male in front of the photo, I examined the details of the person's head and build. I made an estimate of the height of the person, his build, skin complexion, weight and facial features. I recognised that the person in the photo was Jonathon Perese. I said 'That's Jonathon Perese, I am absolutely certain of that'." 10 The appellant gave evidence in which he denied that he was pictured in the photographs or that he had ever entered the relevant bank. 11 The trial occurred in August 2000. In August this year the High Court published its reasons in Smith v R (2001) 181 ALR 354 in which it held that recognition evidence of the type admitted in the present case is not relevant and should not be admitted at a trial. The High Court was careful to indicate that there are circumstances where it may be relevant but before this occurs there must be an issue other than whether the person in the photograph is the accused. 12 In the present case the Crown accepts that the evidence was wrongly admitted and submits that this Court should order a new trial. The appellant submits that the probative value of the photographs is limited, the images being unclear, and there being no other evidence connecting the appellant with the offences, this Court should quash the conviction and not order a new trial. 13 There were two relevant prints tendered in evidence which were taken from the same photograph, the second being an enlargement of the first. Although the image is not perfect in my opinion it is not such that it would be appropriate for this Court to determine that the appellant should not again stand trial. 14 The court has a wide discretion to order a new trial King v R (1986) 161 CLR 423. The alleged offence is serious and the miscarriage arises by reason of the wrongful admission of evidence. These factors indicate that this Court should order a new trial, DPP (Nauru) v Fowler (1984) 154 CLR 627; R v Gordon (1994) 71 A Crim R 459. 15 The orders I propose are: 1. Appeal allowed. 2. The verdict is quashed 3. Order a new trial. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.